Kadison v The Queen

[2010] WASCA 37

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   KADISON -v- THE QUEEN [2010] WASCA 37

CORAM:   WHEELER JA

HEARD:   22 DECEMBER 2009 & ON THE PAPERS

DELIVERED          :   26 FEBRUARY 2010

FILE NO/S:   CACR 94 of 2008

CACR 95 of 2008

BETWEEN:   DANIEL JOSHUA KADISON

Appellant

AND

THE QUEEN
Respondent

FILE NO/S              :CACR 108 of 2008

CACR 109 of 2008

BETWEEN             :DANIEL JOSHUA KADISON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WISBEY DCJ

File No  :IND 746 of 2006

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'BRIEN DCJ

File No  :IND 1541 of 2007

Catchwords:

Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Result:

Appeals dismissed

Category:    B

Representation:

CACR 94 of 2008

CACR 95 of 2008

Counsel:

Appellant:     No appearance 22/12/2009

Respondent:     Mr M Blandford

Solicitors:

Appellant:     No appearance

Respondent:     Director of Public Prosecutions (Cth)

CACR 108 of 2008

CACR 109 of 2008

Counsel:

Appellant:     No appearance 22/12/2009

Respondent:     Mr A L Troy

Solicitors:

Appellant:     No appearance

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Kadibil v The Queen [2003] WASCA 13

Lazarus Estates Ltd v Beasley [1956] 1 QB 702

1. WHEELER JA: On 25 January 2010, notice was sent to the appellant and the respondents to these appeals calling upon the appellant to show cause before a single judge of appeal on 1 February 2010 why the appeals should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for non‑compliance with those rules. On 1 February, the appellant did not attend, but sent an email and a variety of attachments to the court, which I accepted as written submissions in response to the notice. I gave the respondents an opportunity to file submissions in response to those materials. On 5 February, in compliance with the liberty to make submissions granted on 1 February, the Commonwealth filed brief submissions, together with a chronology, and the State provided a letter concurring with the Commonwealth submissions.

2. I am of the view that all of the appeals - that is, the appeals against sentence and conviction, CACR 94 and 95 of 2008 and CACR 108 and 109 of 2008 - should be struck out for want of compliance with the rules.  The background to the appeals, and the history of non‑compliance is as follows.

3. On 13 June and 31 July 2008, the appellant was sentenced, having been convicted after separate trials of two offences on a State indictment and one on a Commonwealth indictment, relating to offences of fraud.  The total effective sentence in relation to the State matters was 14 months' imprisonment with eligibility for parole.  However, that was to be served concurrently with the sentences in relation to the Commonwealth offence, which was effectively 18 months' imprisonment, with release on a recognisance release order after a period of 9 months.  As will be apparent from the bare recitation of those facts, the sentences in relation to those offences have been served. 

4. The appeals were lodged within time, but from early July through to late October 2008, there were delays which, on the whole, do not appear to have been attributable to any fault on the part of the appellant.  Orders were made extending time for filing the appellant's cases so as to bring all of the State and Commonwealth appeals into line with each other.  Before the extended date by which the appellant's cases had to be filed, however, the appellant's then counsel identified a conflict of interest and was unable to act for the appellant.  The same difficulty arose in relation to the next counsel briefed by the appellant.  Fresh counsel was briefed by Legal Aid.  The brief appears to have extended only to the giving of an opinion. 

5. The new counsel briefed to act for the appellant applied for an extension of time, which, having regard to the reasons for the previous delays, was granted.  However, on 3 December 2008, that counsel applied for leave to cease acting for the appellant.  Legal aid had been terminated as a result either of counsel's opinion, or of the appellant's refusal to accept that opinion (when the affidavit of counsel and the transcript of the application to withdraw are read together, there is some confusion about the precise reason).  In any event, it was clear that the appellant did not wish counsel to continue, he having left a telephone message for counsel, advising that the appellant regarded him as "a fucking piece of dog shit".

6. At the hearing of the application by counsel to withdraw, on 18 December 2008, there was discussion between Miller JA and the appellant about how the appeal would then proceed.  The appellant proposed to apply to Legal Aid for a review of the withdrawal of aid.  In January 2009, Legal Aid was requested to delay the Legal Aid Review Committee's consideration of the appellant's review until after the appellant's release from prison, so that he could appear before the Review Committee.  It is not clear why it was thought necessary that he should do so. 

7. On 27 March 2009, at a directions hearing, Miller JA adjourned the matters until 24 April 2009, which was three days after the date upon which the Legal Aid Review Committee was to consider the appellant's application for review.  The appellant advised Miller JA that he would represent himself if legal aid was refused, and Miller JA noted at that stage that the appellant was well out of time for the filing of appellant's cases, and that there was a need to ensure that the matter proceeded expeditiously in the future.

8. On 24 April 2009, the appellant appeared again before Miller JA and advised that the Legal Aid Review Committee had not altered the decision that aid be refused.  He said he had spoken to some lawyers and had some hope of having someone represent him.  The appellant at one point advised his Honour that he would be "dropping the sentencing side", but later said that there was one aspect of the sentence appeals which he wished to maintain.  Miller JA adjourned the sentence appeals to await the determination of the conviction appeals.  He adjourned the matters until 8 May, and advised the appellant in clear terms that on that date either he would need to have counsel making submissions about programming, or that Miller JA would fix a date within approximately 21 to 28 days from 8 May by which the appellant's cases would need to be filed.

9. On 8 May 2009, the appellant had legal representation.  Miller JA ordered that the appellant's former solicitor hand over certain materials to his current solicitor and that the appellant's cases be filed no later than noon on 29 June 2009. 

10. Unfortunately, on 11 May 2009, the appellant was assaulted and suffered serious injuries resulting in his hospitalisation between 11 and 15 May.  The only progress that was made in the matter, seems to have been that documents requested by the appellant's then solicitors were provided to them by the Commonwealth Director of Public Prosecutions on 16 June 2009.  On 19 June 2009, the appellant's solicitor applied for an extension of time for filing the appellant's cases, supporting the application by an affidavit annexing medical advice that, as a result of injuries and medication, the appellant would be unable to give instructions until 17 July 2009, when his medical practitioners would review his condition. 

11. On 30 June 2009, Miller JA granted an extension of time until 7 August 2009.  His Honour also foreshadowed, on that occasion, that the appeals would be struck out if the appellant's cases were not filed in time. 

12. On 6 August 2009, the appellant's solicitor applied to cease acting, as her instructions had been withdrawn by the appellant. 

13. On 14 August 2009, Miller JA had before him the application for solicitors to cease acting, which was granted by consent.  He also had before him an affidavit of the appellant, seeking an extension of time for filing of the appellant's case, and making certain somewhat unusual allegations about the conduct of his solicitor, who had been acting pro bono.  Miller JA firmly advised the appellant that whether he had solicitors or not, it was a "fact of life" that he would have to file his case, at least in relation to the conviction appeals, within a period of time which his Honour then specified.  His Honour had an exchange with the appellant which clearly demonstrated that the appellant understood the concept of a "springing order".  The appellant indicated that there was some possibility that he might not proceed with his appeals at all.  His Honour fixed a date which he indicated was a very generous one (and which was, in fact, a very generous one).  He ordered the appellant to file his cases by 4 pm on Monday, 21 December.  His Honour indicated that because of the delay, if the cases had not been filed by 21 December, his Honour would be inclined to dismiss the appeals for want of compliance with the rules.  His Honour also made a point of granting liberty to apply, and explained to the appellant that if at any time prior to 23 December (the date his Honour fixed for the next directions hearing) it was necessary to apply to the court, he would be able to do so.

14. It appears that on 24 and 25 August 2009, the appellant requested, and was provided with, materials from the Commonwealth Director of Public Prosecutions and his former solicitor.  Apart from making those requests, it appears that no step was taken by the appellant in the appeal between 14 August and 22 December 2009. 

15. On 6 and 13 October 2009, the parties were advised that the directions hearing which had been listed for 23 December 2009 was vacated and that it was relisted for 22 December 2009. 

16. On 22 December 2009, there was no appearance by the appellant at the directions hearing before me.  Although the appellant had been present on the former occasion, and had clearly been advised by Miller JA that he would be inclined to strike out the appeals if no case had been filed by 21 December, I noted that the notice advising the parties of the listing of 22 December had simply listed the matter for directions.  I took the view that it would be appropriate that the appellant be given notice in writing that he was required to show cause, before his appeals were dismissed.  I relisted the matters for 19 January, and ordered that the appellant's cases in all matters be filed and served by close of business on 18 January 2010.  I also directed that there be a notice to the appellant to show cause on 19 January why the appeals should not be dismissed, if the cases were not filed. 

17. On 19 January 2010, there was no appearance by the appellant.  It appears that the notice which I had foreshadowed on 22 December had not been sent to the appellant.  It also appeared that the appellant was aware of the directions hearing and its purpose, since he had telephoned the court indicating that he would be unable to attend, as he was in Sydney.  Notwithstanding that he was apparently aware of the hearing, I was not prepared to dismiss the appeals without formal notice in writing to the appellant.  I therefore adjourned the matter to 1 February 2010.  On 25 January 2010, notice was sent to all parties listing all of the appeals for a directions hearing before a single judge for the appellant to show cause why the appeals should not be dismissed for want of compliance with the rules.

18. That hearing took place on 1 February 2010, as foreshadowed by the notice sent to the parties.  The appellant did not attend.  He sent an email and a variety of attachments to the court.

19. The email advises that the appellant is in New South Wales and unable to return to Perth for "medical reasons".  I set out below the reasons which the appellant says demonstrate that his appeal should not be dismissed for want of compliance with the rules, together with the views which I would take in relation to each of those submissions.  The numbering is my own, the appellant's submissions having been made in "dot point" form.

    (1)I request a 30 day adjournment, so I can apply for Commonwealth grant for funding, application form attached and annexed document A, this shows my correspondence with the Attorney General's department.

    (2)I request today, that I have leave to bring this matter back on to argue that I am a person of no financial means in relation to the application.

    (8)Judiciary Act 1903 subsection 69(3) [details omitted].

20. Points (1), (2) and (8) all effectively seek an adjournment so that the appellant can either apply for legal aid or financial assistance, of some kind, or demonstrate his lack of means.

21. As can be seen from the outline of the history of these matters, this court has long accepted that the appellant has no means.  However, he has been given many months within which to prepare his appellant's cases.  There is no reason advanced why he has not already applied for the funding which he now says that he wishes to seek.  In the past, he has apparently not attempted to pursue legal aid in an expeditious manner.  It appears from an affidavit of Jessica Lillian Davis Cruise, annexed to the materials provided by the appellant on 1 February 2010 that, in what it is difficult to see as anything but a deliberate attempt to delay and disrupt, on 16 April 2009, the appellant advised the Legal Aid Commission that when he appeared before the Review Committee he wished to speak in Russian, and to be provided with an interpreter.  There is nothing in any of the materials before the court that suggests that the appellant has any difficulty with English.  The Legal Aid Commission did not agree to this request.

22. These reasons are entirely without merit.

    (3)I have had some legal advice from a non‑practising solicitor, that has explained I need to complete a form 09 and a form 11 affidavit stating out my reasons, some of the reasons I am on a disabled pension, and will need time to gather this information.

23. This is unintelligible.  It may be concerned with the appellant's lack of means, to which I have referred above; alternatively, it may be directed to the appellant's alleged disability, to which I refer below.

    (4)I have included document B & W PDF that shows my case has merit but unfortunately legal aid will not continue aid.  Even though I will have a high successful of winning a retrial.  Re DOC 1.

    (5)[F]urther evidence has come to light, that witnesses were paid by the complainant to give evidence, and I will have these affidavits shortly.

24. There are no documents that show that the appellant's case has merit.  So far as the witnesses are concerned, there is nothing to indicate who these witnesses might be, in what respects the evidence they gave may have been false, or how it may have affected the trial of the appellant on any of the counts of which he was convicted.  There is nothing to indicate why evidence concerning those witnesses had not been obtained at any earlier time, nor to indicate precisely when it is likely that the evidence might be obtained. 

25. The only indication of possible grounds of appeal in the materials which accompanied the appellant's email, are a copy of the letter to him from one of his former counsel, containing advice concerning the merits of all appeals, and a Legal Aid review file note. 

26. The opinion, of course, was to the effect that the only grounds of appeal that were reasonably arguable related to the Commonwealth indictment.  Those grounds were that the trial judge did not give a warning to the jury concerning the evidence of a person who could be regarded as an accomplice and that a witness had, in the presence of the jury, referred to the appellant having been "remanded at Hakea Prison".  On the face of it, these are arguable, but not necessarily strong, grounds.  So far as the failure to give an accomplice warning is concerned, much would depend upon the extent to which the jury would have been able to understand for themselves, without warning, the interest which the witness might have in the outcome of the proceedings.  So far as the reference to Hakea Prison was concerned, it does not follow that a jury must be discharged whenever any material which might be considered to reflect adversely on an accused person is inadvertently disclosed to a jury, although sometimes the content and context of that disclosure will require that result.  So far as counsel's opinion is concerned, then, there appears to be no merit in three of the appeals, and only arguable grounds in relation to the appeal against conviction in relation to the Commonwealth matter. 

27. It appears from the Legal Aid review note that the appellant told the Review Committee that there was a witness from Thailand who was paid not to give evidence in court.  This may be inconsistent with the appellant's assertion in his email that there was a witness who was paid to give evidence; it is not clear whether he is referring to the same witness, or whether these are separate allegations.  Although the file note is difficult to follow, it appears that the appellant indicated that lawyers in the United Kingdom "have evidence" (although it is not clear what the evidence might be about) and that there was a person who was prepared to swear that she was with the appellant in relation to one of the offences for the whole of a particular day and that he therefore could not have sent emails which he was accused of sending.  As to this last matter, it does not appear particularly promising as a ground of appeal.  It does not take long to send an email and, on the face of it, the probability that the proposed witness and the appellant were in each other's company for every second of the relevant period does not appear to be high.  It appears from the file note that the Review Committee was prepared to accept what the appellant had said to them at face value, and that the reasons for refusal of aid included that the appellant had served his sentences already, and that the cost of overseas lawyers giving evidence and the calling of a witness from Thailand would be "phenomenal".  That last matter is a reasonable observation, and there is nothing in the materials the appellant has sent to this court which indicates how the appellant would propose to obtain that evidence if his appeals were permitted to proceed (assuming that he does wish to obtain it).  However, there is, of course, also the anterior question of whether there is any material, apart from the bare assertion of the appellant apparently made to the Legal Aid Review Committee, that such evidence exists.  Nothing placed before this court demonstrates that such evidence is, or might ever become, available.

    (6)As you can see I was severely assaulted and now suffer epilepsy, this is a change of circumstances and I hope to reapply for legal aid as I am unable to complete most tasks now.

28. The appellant was assaulted on 11 May 2009.  The only material before the court relating to his inability either to act or to give instructions suggested that he would be unable to give instructions until 17 July 2009.  There is no medical evidence to suggest that he is currently unable to complete any tasks of relevance to this appeal.  It is plain from his email that he is able to prepare documents, collate materials, and send them to the court, when he considers it important to do so.  There is no explanation for why he has not reapplied for legal aid, as he indicates he hopes to do, prior to 1 February. 

29. (7)       I do not set out in full the material which is contained at this dot point.  There is a reference to some observations of Denning LJ in Lazarus Estates Ltd  v Beasley [1956] 1 QB 702, the relevance of which is not explained. There is also an extract from Kadibil v The Queen [2003] WASCA 13. In that case, the court indicated that the justice of the case required an extension of time to be granted if there was merit in the proposed grounds of appeal, having regard to that applicant's very limited understanding of the legal process, difficulties in coping with illness, isolation from his own community, and mental illness which developed during his incarceration. However, there is no indication that this appellant has limited understanding of either the legal process, or of the English language. There is no relevant medical evidence. There is little indication of merit in the proposed grounds of appeal. The reference to Kadibil is therefore irrelevant. 

Conclusion

1. Over a year and nine months elapsed between the appellant's conviction of the Commonwealth offence on 30 April 2008, and 1 February 2010.  Over a year and seven months have elapsed between his conviction on 4 July 2008 of the State offences, and 1 February 2010.  Over a year and seven months have elapsed since the date upon which his last sentence was imposed.  Even if one assumes, generously, that none of the delay was attributable to the appellant until December 2008, when his conflict with his then counsel led the latter to apply to cease to act, and even if one assumes, also generously, that it was not possible for the appellant's case to be filed (or even progressed) during the period 11 May 2009 (when he was assaulted) to 17 July 2009, there still remains a period of 10 months during which it appears that the appellant has taken no steps to progress his appeal, and during which he has failed to comply with a number of orders that the appellant's cases be filed by specified dates.  Some of those orders have related only to the conviction appeals, but my orders of 22 December 2009 clearly applied to all of them, as did the show cause notice. 

2. So far as the sentence appeals are concerned, there is nothing in any of the materials filed by the appellant which demonstrates any merit in the proposed appeals against sentence.  The transcript of the directions hearing of 24 April 2009, to which I have referred above, suggests only that the appellant saw the fate of the sentence appeals as in some way linked with the determination of the conviction appeals.  So far as the conviction appeals are concerned, there is a letter from counsel indicating that there may be intelligible, and arguable, grounds in relation to the Commonwealth offence.  While on their face, the grounds do appear to be arguable, there is nothing to indicate that they are strong grounds.  So far as the State offences are concerned, there is nothing before the court to indicate that there are any intelligible or arguable grounds of appeal. 

3. There is nothing to indicate that any further adjournments or extensions of time would result in the appellant filing a case with reasonable prospects of success, or any case, in relation to any of his appeals in the foreseeable future.  I would therefore dismiss both of the conviction and sentence appeals, for persistent and unexplained failure to comply with the Court of Appeal Rules and the orders of the court.